Immediately after the Supreme Court of the United States threw out his executive order outlawing birthright citizenship, President Donald Trump urged Congress to intervene.
In a post on Truth Social, he wrote, “The Supreme Court upheld Birthright Citizenship, which is too bad for our Country, but we can easily make it up in Congress through Legislation, with the support of the President, that has now been determined during this process. No long and unwieldy Constitutional Amendment is necessary!”
It appears that the president decided to lean on Congress for a solution thanks to the concurring opinion written by Justice Brett Kavanaugh.
Liberal outlets such as The New Republic condemned Kavanaugh for trying to give Trump a path to banning birthright citizenship. Even though Trump could not on his own change the application of the 14th Amendment’s citizenship clause, Kavanaugh said Congress could.
“If Congress amends [the Nationality Act, a 1940 law that statutorily recognized Supreme Court precedent on birthright citizenship] or otherwise enacts a statute creating new exceptions along the lines of the Executive Order for children born to foreign citizens unlawfully or temporarily in the country, such a statute, as I see it, would pass constitutional muster,” Kavanaugh wrote.
Regular readers may remember that I made essentially the same argument in a column last year. Even if the president did not have the authority to redefine birthright citizenship by executive order, I wrote, Section 5 of the 14th Amendment explicitly gave Congress the power to resolve the issue through legislation. Now Justice Kavanaugh has pointed to the same path.
And despite the concern of immigrant advocates, Kavanaugh was exactly right, and obviously so. To prove it, all we need to do is read the one sentence that summarized the court’s actual ruling:
“Held: Children born in the United States to parents unlawfully or temporarily present are ‘subject to the jurisdiction’ of the United States and are citizens at birth under the Fourteenth Amendment’s Citizenship Clause.”
Everything hinges on those four words – “subject to the jurisdiction.”
According to the 14th Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The Supreme Court, in its decision, recognized that the universality of birthright citizenship depended entirely on the meaning of “subject to the jurisdiction thereof,” and essentially made the cautious decision that the president – any president – could not substitute his understanding of the phrase for the long-standing judicial interpretation – namely, that if you were born here, you were by definition “subject to the jurisdiction” of the United States.
However, the court’s ruling did not erase the importance of the jurisdictional requirement – indeed, it reaffirmed that those words have legal force. The fact that some people born on American soil have historically been excluded from automatic citizenship proves the point. Children of foreign diplomats remain the clearest example, while many Native Americans were excluded for decades because their tribes possessed a degree of separate sovereignty.
Those exceptions were not spelled out in the 14th Amendment. They were established through law and legal interpretation. So the relevant question is not whether exceptions to birthright citizenship can exist. They already do.
The high court chose not to create an additional exclusion for the children of illegal immigrants under its own authority, and was probably right to demur. And Trump’s recent plan to ask the court to rehear the issue is unlikely to have a different result. After all, when the court is doing its job properly, it should interpret law, not write it.
But Congress has no such strictures.
In fact, the plain language of Section 5 of the 14th Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
What is needed is legislation to define the meaning of “subject to the jurisdiction.” The phrase itself remains undefined in the Constitution. The Supreme Court has supplied its interpretation, but a judicial interpretation is not the same thing as a constitutional definition – nor does precedent guarantee that the court’s interpretation is correct. Congress can pin down the meaning very specifically by declaring that if both parents of an immigrant child are citizens of another country, then their child is subject to foreign jurisdiction and thus not eligible for U.S. citizenship.
So the Constitution isn’t the problem. Congress isn’t even the problem. The problem is that a majority of Congress is no longer permitted to legislate on the nation’s most consequential issues.
We already have a prominent example. President Trump’s important election reforms, contained in the SAVE America Act, cannot be brought to fruition despite the Republican Party holding majorities in both houses of Congress. That’s because, thanks to the filibuster, legislation can’t be passed with a simple majority in the Senate, but only with a 60% majority.
The idea is that this supermajority will prevent major changes to our system of government unless there is bipartisan agreement – but with partisanship becoming as virulent as it has, what really happens is that the filibuster prevents any meaningful change from being approved.
Majority Leader John Thune has shown himself unwilling to discard the filibuster for the sake of the election reforms contained in the SAVE America Act. But maybe if the future of the country were on the line with an opportunity to redefine citizenship, Thune would find his courage.
Or maybe not.
So-called traditionalists in the GOP refuse to budge on the filibuster on the premise that if the filibuster disappears, then Democrats will run rampant as soon as they have majorities in Congress and hold the White House.
Well, wait a minute. Isn’t that called democracy? And don’t elections have consequences? We’ve been told so repeatedly, and yet Republican leaders seem afraid to let the American people have the government they elected.
If the filibuster is such a good idea, why not create a supermajority rule in the House as well? Then we could have total gridlock and Congress could be out of session for 51 weeks a year instead of the usual 20.
The Supreme Court has told Trump that he cannot change the rules of birthright citizenship by himself. Justice Kavanaugh has pointed toward Congress. The Constitution explicitly gives Congress the power to enforce the 14th Amendment, and voters have given Republicans control of both houses of Congress and the presidency.
If Republicans still cannot act, then the obstacle is not the Constitution. It is not the Supreme Court. It is not even the Democratic Party. It is their own devotion to a Senate rule that appears nowhere in the Constitution and prevents the government elected by the American people from governing.
Birthright citizenship may now provide the clearest test yet of whether Republicans intend to use the majority voters gave them – or spend another two years explaining why the filibuster would not let them.
